Mass. AG: Town should repeal no-swearing law

Wednesday

Oct 10, 2012 at 3:15 AM

BOB SALSBERG,Associated Press

BOSTON (AP) — A Massachusetts town's bylaw against public profanity appears to violate constitutional free speech rights and should not be enforced, the state's attorney general said in a recommendation Tuesday.

Middleborough, a town of about 23,000, received national attention in June when residents at a town meeting voted 183-50 to approve an article that allowed police to enforce a 1968 bylaw by imposing a $20 fine against loud and obscene language. Supporters of the measure said it was meant to discourage groups of foul-mouthed youths who congregated on downtown streets or public parks.

The article was reviewed by Attorney General Martha Coakley's office, which said in Tuesday's ruling that the enforcement mechanism itself — the $20 fine — did not violate state or federal law.

"However, we have determined that some of the underlying by-laws passed more than 30 years ago no longer meet constitutional standards and those by-laws should be repealed by the town, and in the meantime, not actively enforced," said Emalie Gainey, a spokeswoman for Coakley.

The attorney general specifically urged repeal of the 1968 bylaw barring "profane" language in public, saying it would violate First Amendment free speech guarantees.

Coakley also recommended the town consider changes in two other bylaws — a 1972 measure against the making of an "alarming or tumultuous noise," and an antiquated 1927 bylaw that prohibited, among other things, throwing snow balls or playing football on a public street.

She stressed her office had no authority to overturn the existing bylaws, since they had been approved by previous attorneys general.

Mimi Duphily, a former town selectwoman who pushed for the fine against swearing, said it was not clear what the impact of Tuesday's decision would be or if it might prompt repeal of the 1968 bylaw.

But she strongly defended the town's crackdown on profanity.

"This has nothing to do with freedom of speech," Duphily said. "This is about verbal assault."

The torrent of loud and abusive language, she said, would keep customers away from downtown businesses and was frightening to seniors and young children.

"I can handle it," she said. "The issue is when someone is not capable of handling it, or you have to explain to a 10-year-old what in heaven someone just said. That's unnecessary."

Duphily and other backers of the article said it was never intended to target casual or private conversations.

Regardless of the eventual fate of the measure, Duphily said the action by Town Meeting already has had a positive impact, with what she said was a noticeable drop in harassing behavior by young people. She also credits bicycle patrols that were implemented by the town's police chief, Bruce Gates, in the downtown area.

The 1968 bylaw had rarely, if ever, been enforced because it essentially made cursing a crime and was not worth the effort to prosecute. The measure passed by town meeting in June decriminalized profanity, allowing police to write a ticket for it as they would traffic or other violations.